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Why Trump's Lawyers Say He Can't Be Tried For Incitement Of Insurrection

MARY LOUISE KELLY, HOST:

The second Senate impeachment trial of Donald Trump is set to begin in one week. Today House impeachment managers and Trump's legal team both filed briefs to the Senate in preparation. NPR justice correspondent Ryan Lucas has been reading through them both. He's here now.

Hey, Ryan.

RYAN LUCAS, BYLINE: Hi there.

KELLY: All right. Let's start with the brief from the House impeachment managers. It ran 80 pages. What is the case that they lay out in those 80 pages in favor of impeachment?

LUCAS: Well, they really give us the most detailed look yet at the case that they want to make. They build a narrative that begins before the election and comes to a deadly crescendo on January 6 with the insurrection at the Capitol. In their brief, the House managers point out that back in the summer, Trump refused to commit to a peaceful transfer of power. And then after the election, for weeks, Trump was pushing baseless claims of election fraud. They say that he fed lies to his supporters that made them think that they were the victims of some massive conspiracy. And they say that he then summoned his supporters to D.C. on January 6, and that's where he took to the stage near the White House and told them to, quote, "fight like hell." The managers say Trump whipped the crowd into a frenzy and aimed them, quote, "like a loaded cannon down Pennsylvania Avenue at the Capitol." They say he incited the mob. They say he did nothing to call it off. And they say that he violated his oath of office and deserves to be convicted and barred from office.

KELLY: OK. And what is Trump's legal team saying? They have filed an answer to this article of impeachment.

LUCAS: So Trump's lawyers, David Schoen and Bruce Castor Jr., argue first and foremost that the proceedings are, in their view, unconstitutional because Trump is no longer in office. They say the Constitution requires that a person be in office to be impeached. And since Trump is out of office, the trial is, in their words, quote, "a legal nullity." I'll note that some legal scholars would agree with them on that point. Many legal scholars, however, would not. It is a point of debate. It's a point, however, that appears to resonate with, importantly, Senate Republicans, since in a procedural vote last week, 45 of them voted that impeaching a former president was unconstitutional.

KELLY: OK, so underscoring the point there that we are once again, when it comes to Donald Trump, in uncharted waters. We did expect, though, that his defense team was going to raise this issue of constitutionality. Did their brief also get into rebutting some of the charges that the House managers made, these false claims of election fraud?

LUCAS: They did get into the president's claims of election fraud, but it was not a focus of their brief. His legal team says that Trump exercised his First Amendment right to free speech when he questioned the election results, but they argued that there's insufficient evidence to conclude that what Trump said was actually false. They don't bring up the fact that one court after another shut down the Trump campaign's legal challenges to the vote, though. Instead, his lawyers in their briefs spend more time denying the allegations against their client. They deny that Trump incited the mob. They deny that he violated his oath of office. They argue that all of his statements are protected by the First Amendment. That's a point I'll note that the House managers today tackled directly and argued that incitement to violence is not protected speech.

KELLY: All right. Meanwhile, we are going to see how this all works out one week from today, when the trial actually begins. What else happens between now and then?

LUCAS: So Trump's lawyers will have a chance to file a trial brief by next Monday that will likely be more fulsome than the case we saw today. But it's worth repeating, ultimately, the question of whether Trump should be convicted and removed from office is up to the senators alone. They alone will make that call.

KELLY: All right. NPR's Ryan Lucas reporting.

Thank you, Ryan.

LUCAS: Thank you. Transcript provided by NPR, Copyright NPR.